A lawyer walks into an art gallery…

My reflections from Week 1 of the CopyrightX programme at Harvard Law School.

Can bad art benefit from copyright protection? Yes! In fact, even something that is not artistic at all can be copyright protected, provided that it is original and creative. But does this mean that judges should necessarily shy away from evaluating artistic merit?

Copyright protects original works of authorship fixed in any tangible medium of expression (17 U.S. Code § 102, but similarly stated in other jurisdictions). This means that the creator or artist can prevent someone else from copying their work without permission. In practice, this applies to music and dramatic works, as well as films, pictures, photos, and other pieces of art, provided that the work is creative, original, and somehow expressed in a fixed, tangible way (for example in written, recorded, or painted form).

But what about “other” works, which don’t necessarily fit into the cateogories listed above? Does copyright extend to protect bad art? Or works that aren’t artistic at all?

The answer is “yes”, followed by a “usually”. Copyright law does not require that the piece or work in question be “artistic”. And in fact, the courts have time and time again resisted making judgments based on artistic merit… at least, in theory.

As Justice Oliver Wendell Holmes Jr. wrote in the 1903 Suprme Court case of Bleistein, “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations.” In other words, lawyers aren’t art critics or gallery curators, and shouldn’t pretend to be.

This concept is recognised broadly as the principle of aesthetic neutrality. As discussed in Professor Fisher’s first week of lectures for CopyrightX, there are several reasons why courts would want to stay away from only offering copyright protection to “good art”.

One of the arguments I found most compelling was actually quite fundamental, and arguably the most straightforward: in short, it’s because people don’t always know what art actually is. We’ve all heard friends point to a highly regarded painting in a museum and say, “how is that art?” Likewise, parents the world over have long questioned whether their teenager’s favourite song is “music” or “just noise”. Everyone is likely to have their own unique – but nevertheless valid – answer to the question about what “art” really is.

Thankfully for our purposes, art critics and philosophers have broken this question down into useful bitesize pieces. As explained by Professor Fred Yen, one way to answer “what is art?” is by using one of three lenses, or theories: formalism, intentionalism, and institutionalism.

  • FORMALISM speaks to the form and style of a work. Formalists would therefore say that art is something which can provoke in sensitive people an aesthetic emotion, based purely on the way it is made, and its visual aspects (see Clive Bell).
  • INTENTIONALISM moves beyond way the artwork looks, and shifts the focus to the life and mind of the artist. Art can be defined therefore as “something produced with the intention of giving it the capacity to satisfy the aesthetic interest” (see Monroe Beardsley). As explained by Prof. Fisher, we can take people moving in a circle as an example. Their motivation could be religious (for a ceremony), political or economic (as in a picket line), or artistic (in a ballet): but it is only when the intention falls into the last category that the movement is ‘art’ under the theory of intentionalism.
  • INSTITUTIONALISM considers that the classification of art is a form of social agreement, in that an object can only become art within the context of the ‘art world’. This speaks to the way in which artists and viewers participate in the activities of creating, presenting, and appreciating art. Put simply, art is art if institutions like museums or galleries display it (see George Dickie).

I find these three theories really useful. Even without knowing their proper names, it’s easy to recall a time when I thought a piece of work was, or wasn’t, “art” based on how I answered one of the questions posed above. I really appreciate works from the New Objectivity (Neue Sachlichkeit) movement of the 1920s and 1930s for example, not necessarily because I always like the form and style per se, but because I find the political and social context in which it was created fascinating, and I find the life of the artists really thought provoking.

Die Garçonne / Dirne auf Grüner Couch (c.1931) by Jeanne Mammen. I really like most of Mammen’s work, but this is an example of one of her paintings I don’t think is particularly “aesthetically pleasing”. But it’s not really intended to be…

Clearly, art means different things to different people – and judges recognise this nuance. Throughout case law, judges have noted that they are ill-equiped to make ‘accurate’ assessments as to what constitutes art. Again to quote Justice Holmes, “some works of genius would be sure to miss appreciation [because] their very novelty would make them repulsive until the public had learned the new language in which their author spoke.” As a matter of precedence therefore, judges have often claimed to ignore the question altogether, and try to avoid bringing artistic merit into the copyright analysis.

That said, although it’s clear that “aesthetic neutrality” is the stated objective for the court, it seems rather unavoidable in practce. Even in the must mundane of copyright cases, lawyers must argue if, and to what extent, copyright covers the work in question. Here, in order to answer questions of originality and creativity, the analysis invariably bites on ‘academic’ discussions of art.

This includes the choices made by the author or creator, what their motivations were, and the context within which the work was created. Furthermore, in order to properly determine questions concerning the idea / expression dichotomy, the scènes à faire doctrine, “substantial similarity” and so on, a court will necessarily need to evaluate artistic influence and aesthetic qualities. Mannion v. Coors Brewing Co. (2005) is a very good example of the court doing just this. In Mannion, the court even analysed lens choices and the extent to which cloud formations and the jewelry worn by the portrait’s subject were “artistic”! It is no surprise that – intentionally or not – judges and juries do tend to incorporate some form of artistic critique into their reasoning.

It seems fitting to end with a comment from Professor Carys Craig (whom you can follow on Twitter @CraigCarys): “Neutrality is widely hailed as a fundamental principle of fairness, justice and equity; it is also, however, widely criticized as a myth that too often obscures the inevitable reality of perspective, interest or agenda”. We know that the law is necessarily intertwined with social issues, and that the law has inherent social biases. And what is art but a reflection of some aspect of society?

Featured photo Adrien Olichon via Unsplash.

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